Hon’ble Mrs. Rumpa Mandal, Member.
In a nutshell, the complaint case is that the Complainant Sri Abhijit Sarkar booked four numbers of money orders of total worth Rs. 16,000/- before the O.P. No.1 i.e. Superintendent, Cooch Behar Head Post Office vide EMO PNR141926644317054010, 141926649313768010, 141926644315235010, 141926644316270010 and money orders were received by the O.P. No.2 i.e. Dewanhat Post Office on 29.09.2022 (Annexure- A2 to A7 are the copy of postal receipts). On 28.10.2022 Complainant again booked two numbers of money orders of total worth Rs.6,000/- before the O.P. No.1 vide EMO PNR 141996669370289010, 141926669369111010. On the same date O.P. No.2 received the same (Annexure- B to B3 are the copy of postal receipts). The said money orders were booked for the alimony pendentelite which was ordered by the Hon’ble Circuit Bench of Calcutta High Court at Jalpaiguri vide C.O. No. 100 of 2022 on 06.09.2022 (Annexure-C is the certified copy of the order dated 056.09.2022). On 04.11.2022 his wife appeared in vide Misc. Execution case No.70/2021 before the Ld. Court of chief Judicial Magistrate, Cooch Behar and revealed that she did not receive any money orders from this complainant through post office. So, the Ld. Court was pleased to pass an order of ER of D/W against the Complainant (Annexure-D is the copy of the order dated 04.11.2022). On 05.11.2022 Complainant filed a written complaint before the O.P. No.1 vide letter and the same was received on 07.11.2022 by the O.P. No.1 (Annexure- E is the copy of the letter dated 05.11.2022). On 29.11.2022 Complainant booked two money orders amounting to Rs.6,000/- before the O.P. No.1 to his wife Mousumi Dutta vide EMO No. PNR141926697013908010, 14192669 7012457010.
The said two money orders dated 29.11.2022 which were delivered to his wife after lapse of nine days i.e. 08.12.2022 (Annexure- F to F3 are the postal money receipt). The Complainant booked eight money orders amounting to Rs.28,000/- for which service charge was paid Rs.1400/- to the OP. The Complainant booked first money orders but the payment was delivered after lapse of approx 40 (forty) days. Again he booked second money orders but the payment was delivered after lapse of approx 11 days and further he booked the third money orders for which the payment was delivered after lapse of approx 9 days. Due to this negligent activity and deficiency in service by the OP for which ER of D/W was issued against the Complainant. The cause of action arose on 29.09.2022 and still it is continuing. Finding no other alternative, the Complainant filed this case and prayed for an order before this Commission against the O.Ps to pay a sum of Rs.1,70,000/- for the immense mental harassment and agony and further to pay a sum of Rs.3 Lakhs as compensation for negligence and deficiency in service and Rs.25,000/- for cost of proceeding.
Both the O.Ps contested the case by filing written version wherein he denied each and every allegation of the Complainant. The positive defence case of the O.P. No.1 & 2 in short is that the present case is not maintainable in the present form and in law and this case is unlawful, unjustified, unnatural and manipulated.
As per written version of O.Ps which stated that due to technical snag as noticed vide ERR No.01 dated 04.11.2022 by Sub-post Master, Dewanhat and the same were not reflecting in the system. The O.Ps also stated that another payment was booked on 28.10.2022 at Cooch Behar Head Post Office the EMO got transmitted to Dewanhat Sub-post Office on 28.10.2022. But EMOs printout was taken at Dewanhat Sub-post Office on 03.11.2022 and delivered from Alloabari Post Office on 07.11.2022. As money orders were not received by the wife of the Complainant, so in Misc. Execution Case No. 70/2021 before the Ld. Court C.J.M. passed an order of ER of D/W against the Complainant. The O.Ps further stated that the Complainant has not disclosed the actual truth of Court orders which was related to ER of D/W. As per section-6 of Indian Post Office Act, 1898 that delivery was made within time. So, there is no negligence and no deficiency in service. The O.Ps therefore claimed that the case is liable to be dismissed.
Perused the case record and all documents submitted by the Complainant and the O.P. No.1 & 2. Heard, the argument advanced by both the parties at length. The question of fact and law involved in this case demand for ascertainment of the following points for proper adjudication of this case.
Points for Determination
- Whether the case is maintainable or not it its present form and nature?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get any relief as prayed for?
Decision with reasons
Point Nos. 1, 2 & 3.
All the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The Complainant in order to substantiate the case adduced oral evidence by means of evidence in chief and also files some documents being Annexure- A to F.
In order to ascertain the present Point Nos. 1, 2 & 3 as to whether the Complainant is entitled to get the relief as prayed for let us have a thread bearing analysis of the evidence on record. The present case is filed under section 12 of Consumer Protection Act, 1986 in the year, 2022. But the present Consumer Protection Act, 2019 has already been activated from the year, 2020. The present case ought to have been filed under section 35 of the Consumer Protection Act, 2019. So, the case is barred by provisional law. Accordingly, the present case is not maintainable in its present form and law.
The Misc. case is pending before Ld. C.J.M Court unless any final decision is taken by the Magistrate. So, this Commission is not in a position to hold the responsibility of OP. Actually the main grievance against the Complainant filed by his wife and the ER of D/W issued by the Magistrate is still enforced and that has not been re-called. There is nothing to show that the Magistrate Court accepted the defence of the Complainant that being the state of affairs the Commission is not in a position to ascertain the liability of the OP. The OP also states that the Complainant has not disclosed the actual truth (Annexure-D). He has suppressed the material fact and he has not come in clean hand before this Commission. If we consider Annexure-D being an order of Misc. Case No. 70/2021 passed by Magistrate where it is clearly mentioned that the Complainant is not transparent. The matter is Sub-judice before the Magistrate Court.
The OP has taken the plea that the delay is not intentional but the Complainant could not produce anything to show that the Magistrate has accepted that ground. So, without knowing the decision of the Magistrate Court, this Commission cannot come to any definite conclusion that the said conduct of the OP has caused deficiency in service to the Complainant.
As per section-6 of Indian Post Office Act, 1898 which clearly mentions that the Government shall not incur any liability by reason of the loss, mis-delivery or delay of or damage to any postal article in course of transmission by post and no Officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage.
Ld. Advocate for the OP also argued that the claim is unlawful, unjustified, unnatural and manipulated.
On perusal of cross-examination by both the parties it is found that the Complainant could not discard the specific evidence of the O.Ps. Thus, after assessing the entire evidence between the parties it is clearly established that there is no deficiency in service as per section-6 of Indian Post Office Act, 1898 and the Misc. case is sub-judice before the Magistrate. Accordingly, the claim of the Complainant could not be established up to the hilt.
In the light of discussion made herein above and having assessed the evidence on record the Commission comes to the findings that the Complainant failed to establish the claim up to the hilt. In the result complaint case fails.
Point Nos. 1,2 & 3 are thus decided in negative and go against the Complainant.
Hence, it is
Ordered
That the case No. CC/65/2022 be and the same is dismissed on contest without cost.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available on www.confonet.nic.in.
Dictated and corrected by me.
